Commonwealth v. Swenson

COMMONWEALTH OF PENNSYLVANIA v. ERIC ROLAND SWENSON Appellant

No. 941 EDA 2022

No. J-S45035-22

Superior Court of Pennsylvania

February 22, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered March 15, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at CP-46-CR-0002970-2019

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM

MURRAY, J.

Eric Roland Swenson (Appellant) appeals from the judgment of sentence imposed after the trial court convicted him of sexual abuse of children (photographing, videotaping depicting on computer or filming sexual acts), sexual abuse of children (child pornography), and criminal use of communication facility.^[1] We affirm.

The trial court explained:

On May 27, 2019, Detective Greco of the Lansdale Borough (Montgomery County) Police Department was assigned to investigate a report taken from Mater Dei Catholic School involving [Appellant]. N.T., 11/29/2021, p. 30. The report involved the assertion that [Appellant] was taking pictures of cheer practice when his [6 year old] daughter was not on the mat. Id. at p. 32. Detective Greco went to [Appellant's] home and spoke of the concern. [Appellant] stated that he had no "nefarious" intent but rather, had "artistic pictures" on his phone.

Id. at p. 34. Following some discussion, [Appellant] consented to Detective Greco conducting a search of the phone. Id. at p. 38-39. That evening, [Appellant] emailed Detective Greco, which email included the following:

"When you asked the question if I had any improper photos of my daughter on my phone, honestly, that hit me in the gut and mentally grossed me out. … [t]he artistic nudes I have on the phone got me thinking if I would allow my daughter to do those poses and after getting sick to my stomach and said to myself, hell no. A few photos where you can see their vagina, they are not showing the inside. Thus, I thought they were artistic pics. Please delete any and all nudes you deem necessary. The only reason I saved the photos is because I enjoy beauty. … As to my daughter's Pep squad, that is over for the year. From now on, I promise to take only photos of [my daughter]."

Id. at 44-45.

Detective Greco responded to the email requesting that [Appellant] come to the station. Meanwhile Detective Greco obtained a warrant for the Defendant's arrest for the possession of the pornographic images of children on the phone. The next day, March 28, 2019, [Appellant] came to the station and was taken into custody. Id. at p. 47.

On that same day, March 28, 2019, Detective Greco obtained a search warrant to search the contents of [Appellant's] phone and his residence and ultimately seized two (2) desktop computers and multiple hard drives, compact disks labeled with female names, USB drives and flash drives that would be used on a camera. Id. at p. 48-52.

After the search, still on March 28, 2019, Detective Greco spoke again with [Appellant]. After waiving his [rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966)], [Appellant] provided a statement admitting that he possessed and watched "child porn video on the computer" and that his collection included "some video, some pictures". [Appellant] advised that there were child pornographic images stored on his computer in a folder titled "mass effect2". Id. at 56-61.

Trial Court Opinion, 6/8/22, at 1-2.

The trial court further recounted:

The computer devices were professionally downloaded. Counsel [for Appellant] stipulated that [Appellant's] cell phone "contained over one hundred images and/or videos of prepubescent children engaged in sexual acts or in the simulation of such acts." Detective Greco testified that the images included "prepubescent females, various states of nudity, posing" and engaged in "sexual acts to include vaginal intercourse, anal intercourse." [N.T., 11/29/21,] at p. 69-70.

Detective Greco testified that he determined eleven (11) of the pornographic images on [Appellant's] phone to be of his daughter in various stages of undress and nudity. Two of the photographs, taken on February 9, 2019, involved [Appellant's] daughter posing for the camera. In the first photograph, [Appellant's] daughter is topless, holding a pajama or shirt top covering her vaginal area; in the second she is covering her bare breasts with her arms seemingly pushing up with her arms to accentuate her breasts. Also located on the phone were "modifications of the original" - or "cropped" versions - of the same photographs in which [Appellant's] daughter's head and face are cropped off. The modified images are essentially a zoomed-in image of the child's breasts. Id. at p. 72-81.

[Appellant's] daughter was six years old when these photographs were taken. Id. at p. 95. These photos were the bases for Counts One and Two [sexual abuse - production], 18 Pa.C.S.A §6312(b)].

Id. at 3.

Detective Greco discovered "tens of thousands of images and videos of child pornography" on Appellant's desktop computers. N.T., 11/29/21, at 83. The trial court, in camera, reviewed the evidence seized from Appellant's electronic devices. The trial court stated:

The photographs included a large number of topless, prepubescent girls, many posing in a seductive way and positioned like the topless photograph of [Appellant's] daughter. Many other photographs were of prepubescent topless girls standing before the camera. Many of the photographs included prepubescent girls engaging in hard core sexual acts, including oral, vaginal and anal sex involving adult penises (with the male's head cropped out) and fake penises. The [trial c]ourt only observed a very small percentage of the thousands of images and videos of child pornography.

[Appellant] had taken photographs (which were on his phone) of his daughter -- and another similarly-aged girl --"licking'' or "sucking on a lollipop". [N.T., 11/29/21,] at p. 87-90, 106-107. In his computer collection, he had a number of other photographs of young girls also licking or sucking a lollipop. Some of the photographs are modified and zoomed in on the child's mouth as she is performing this act. Of note, the pictures of the girls on his computer with lollipops were in the same collection as photographs of young girls with adult penises entering their mouths.

All the girls in [Appellant's] child porn collection "appeared to be ... as young as four going on twelve." Id. at p. 95.

[Appellant] also had photographs of himself posing with a doll (a replica of a young girl) dressed in what appears to be his daughter's "Mater Dei Catholic School uniform top and uniform bottom." Id. at p. 101. There were "a lot" of photographs of [Appellant] simulating sexual acts with the doll. One such photograph was [Appellant] with "full frontal nudity ... posing with the doll and smiling." Id. at p. 102-103. The photographs confirm that at some point, [Appellant] replaced the mouth of the doll "from just a cotton mouth to what appears to be a plastic mouth, like a plastic opening." Id. at p. 103.

Yet another photograph was [Appellant] with the "doll bent over" on a bed and [Appellant] "is behind the doll and is pulling the doll's hair and it looks like he is simulating a sex act." Id. at p. 104. Indeed, the photograph showed [Appellant] pushing down on the doll's neck and simulating - or literally - penetrating the doll with his penis. The bed on which the simulated sex act was taking place appeared to be a school-age girl's bed, with pink paint or wallpaper on the walls and pink, flowered bedding. A rectangular piece of art was on the wall, with pink juvenile lettering, which spelled out [Appellant's] daughter's first name.

Notably, [Appellant] had multiple photographs of his daughter in the same (or virtually identical) Mater Dei Catholic School uniform as that of the doll. Id. at p. 105.

[Appellant] was also in possession of still photographs -"cropped from a video" - of other girls from the school including a student with a Mater Dei Catholic School uniform. The still photographs included "edited down" -- and zoomed-in -- versions which remove adults and other people from the photograph so that it focuses only on the young girl. Id. at p. 116.

Id. at 3-5.

On July 19, 2021, the Commonwealth filed a motion to admit prior bad acts evidence pursuant to Pa.R.E. 404(b).^[2] The trial court explained:

Specifically, the Commonwealth sought to admit evidence of certain uncharged conduct of [Appellant] including (i) filming and photographing girls other than his daughter at his daughter's school, (ii) producing photographs of himself, totally or partially naked, along with a doll dressed in the uniform of his daughter (in one case simulating having sexual intercourse with the doll) and (iii) possessing photographs and videos of young girls in potentially sexually suggestive poses or partial nudity each of which, by itself, did not constitute child pornography.

Prior to the beginning of trial on November 29, 2021, the [c]ourt... heard argument on the Commonwealth's 404(b) motion, which this [c]ourt granted.

Id. at 5-6.

The court held a one-day bench trial and thereafter convicted Appellant of the above crimes. On March 15, 2022, the court sentenced Appellant to an aggregate 5 - 10 years in prison, followed by 7 years of probation.^[3] Appellant timely appealed. Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents three issues for review:

1. Whether the trial court erred in granting the Commonwealth's prior bad acts motion where the evidence that was admitted did not fall under any of the Pa.R.E 404(b)(2) exceptions and only showed that Appellant had the propensity to act in accordance with his attraction to young girls?

2. Whether there was sufficient

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